Nirmalendu Debbarma vs State of Tripura and Others

B.B. Deb, J.—In this writ petition under Article 226 of the Constitution of India, the petitioner sought for issuing a writ of certiorari quashing the impugned order bearing No. F.6(42)-PWD/E/89(S) dated 20.4.1999 by which the petitioner''s appointment to the post of Draftsman Grade-II was cancelled by the Engineer-in-Chief, PWD, Tripura, Agartala, respondent No. 2.

Briefly, the petitioner''s case is that he joined service under the Public Works Department (shortly PWD) Govt. of Tripura on 29.6.1962 (post to which he was appointed has not been mentioned in the writ petition). Subsequently he was promoted to the post of Draftsman Grade-111 on 8.8.1990. He was further promoted to the post of Draftsman Grade-II and joined service on 10.8.1990. While the petitioner had completed almost nine years continuous service in the Grade, draftsman Grade-11, the respondent No.2, the Engineer-in-Chief, PWD, Govt. of Tripura issued the impugned order dated 20.4.1999 by which the petitioner''s promotion order dated 8.8.1990 has been cancelled without any reason whatsoever, hence this writ petition.

The respondents contested the case by filing counter affidavit contending, Inter alia, that initially the petitioner was appointed as Tracer and subsequently was promoted to the post of draftsman Grade III on 12.6.1981 in the pay scale of Rs. 325-665 subsequently revised to Rs. 560-1300 as per the revision of Pay Rules, 1982. The petitioner was promoted to the post of Draftsman Grade II on adhoc basis of course he was allowed to continue for about 9 years, but pursuant to revision of Pay Rules, 1988, the post of Draftsman Grade III was re-designated as Junior Draftsman, Draftsman Grade II as Draftsman and Draftsman Grade I as Senior Draftsman with revised pay scales and thereafter, the petitioner by filing written communication dated 11.10.1988 opted for the post of Junior Draftsman. The ad hoc promotion of the petitioner to the post of draftsman Grade II vide order dated 8.8.1990 was not permissible under the law and that was done erroneously through oversight which was cured in accordance with the R.O.P Rules, 1988 fitting the petitioner against the re-designated post of Junior Draftsman with revised pay scale of Rs. 1300-3220. On completion of 10 years service, the petitioner would get the next higher pay scale of Rs. 1450- 3710 and thereafter, the next higher scale of pay of Rs. 1700-3980 on completion of a further period of 8 years'' service. On 8.8.1990 while the petitioner was erroneously promoted, of course on ad-hoc basis, to the post of Draftsman Grade II the ROP Rules, 1988 which was in vogue and as such the petitioner''s substantive post would have been Junior Draftsman. Since the petitioner was erroneously promoted on ad-hoc basis to the post of Draftsman Grade II vide order dated 8.8.1990 as in fact and in the eye of law there was no post of Draftsman Grade II on the relevant time, the same was detected and cured by the impugned order and as such the counter-affidavit it contains the petition is liable to be dismissed.

4.1 have heard Mr. C.S. Sinha, learned counsel for the petitioner and Mr. U.B. Saha, learned senior Govt. Advocate, assisted by Mr. J. Majumder, learned counsel for the respondents.

On perusal of Annexure-I bearing No. F.6(25)-PWD(E)/81 dated 20th May, 1981 it appears that among others the petitioner Shri Nirmalendu Deb Barma was promoted to the post of Draftsman Grade III on ad hoc basis for a period not exceeding six months, but what happened after the expiry of six months has not been brought on record by the petitioner. However, the counter-affidavit contends that the petitioner was allowed to continue to hold the post of Draftsman Grade III.

On perusal of Annexure-2, Office Order bearing No. F.6(44)-PWD(E)/82(P-2) dated 8th August, 1990, it appears that the petitioner Shri Nirmanlendu Debbarma and another Shri Anil Ch. Debbarma had been appointed on promotion to officiate as Draftsman Grade II for a period of one year, but what happened after the expiry of the said ad-hoc appointment for one year the petitioner did not make any reference of any order, but from the counter-affidavit it reveals that the petitioner was allowed to continue in the said post till the impugned order bearing No. F.6(42)-PWD/E/89(S) dated 20.4.1999 was issued by which the earlier ad-hoc promotion of the petitioner dated 8.8.1990 was cancelled.

Mr. Sinha, learned counsel for the petitioner has totally failed to explain under what authority the petitioner had been continuing in the post of Draftsman Grade II after the expiry of one year from 8.8.1990. Admittedly, the petitioner was promoted on ad hoc basis for a definite period of one year in view of Annexure-2 dated 8.8.1990 and as such the petitioner continued in the said post exceeding one year, apparently without any authority of law. The petitioner acquired no right to hold the post of Draftsman Grade II after the expiry of one year, no lien has ever been created against that post and as such the impugned order dated 20.4.1999 by which the said ad hoc appointment of the petitioner dated 8.8.1990 was cancelled, appears to have never been suffered from any illegality, irregularity nor it has been issued contrary to any valid law, rather the continuation of the petitioner in holding the post of Draftsman Grade II after expiry of one year from 8.8.1990 appears to be having no sanction of law.

The petitioner held the post of Draftsman Grade II beyond the period of one year from 8.8.1990, which is quite illegal and irregular, but since he worked in the said post he had been paid the corresponding pay and allowances provided to the post. It is made clear that the authority may proceed against the Drawing and Disbursing Officer for having allowed the petitioner the undue benefit in holding the said higher post.

Mr. U.B. Saha, the learned senior Govt. Advocate appearing on behalf of the respondents having referred Annexure-R-1 dated 11.10.1988 submits that the petitioner in writing opted for the pay scale provided for the post of Junior Draftsman and that was done pursuant to the Revision of Pay Rules, 1988 and the petitioner voluntarily by the said option accepted the corresponding pay scale of Junior Draftsman and as such the petitioner has no reason to make any grievance against the impugned order.

The impugned order has never been issued as a punitive measure nor any stigma has been cast in the service career of the petitioner, rather it appears that the cure the wrong already done, the authority being compelled issued the impugned order and the petitioner also accepted the revised pay scale meant for the post of Junior Draftsman and thus neither the principle of natural justice has been violated nor any sort of infringement of any right of the petitioner has been denied and as such the petition is devoid of merit and liable to be dismissed.

In such nature of cases stringent approach should be adhered to by imposing heavy cost to check the frivolous litigations, but since the post has been placed in the lower step of ladder of the service hierarchy, I refrain myself form imposing any cost.

In the result, the petition is being devoid of any merit at all. is dismissed without cost.